NEW YORK DWI – What Happens if You Refuse to Take a Properly Requested Breathalyzer Test?

Here at the New York Criminal Defense Firm of Tilem & Campbell we often represent defendants who, in addition to being charged with Driving While Intoxicated or Driving While Ability Impaired (please see previous posts), refused to submit to a chemical test. Almost always, the chemical test in question is a Breathalyzer or similar machine such as an Intoxilyzer which is usually used in New York City or DataMaster which is often used in Westchester County. Our attorneys are often confronted with questions about the consequences of the refusal. There are no New York State criminal consequences; however, there are other consequences that result from a refusal. First, the refusal can be introduced at trial as what is known in New York as consciousness of guilt evidence. Second, at the time of your arraignment, the court will immediately suspend your license pending the prosecution of your case.

Whether one should refuse a chemical test or not is a complex question well beyond the scope of this Blog. As always, my advice is to consult with a skilled and experienced criminal defense attorney. This Blog provides general informative reading but is not a substitute for personalized legal advise.

Essentially, any person who operates a motor vehicle in New York is be deemed to have given consent to a chemical test of, among other things, his or her breath for the purpose of determining the alcoholic and/or drug content of that person’s blood. See generally VTL 1194(2)(a). However, before an officer may request that a motorist take a chemical test, either a lawful arrest for Driving While Intoxicated or Driving While Ability Impaired, or a positive result on a lawfully requested breath screening test must have occurred. (Note: a breath screening test is NOT a Breathalyzer but is instead a test of one’s breath (not blood) given by an officer on the side of the road. The machine used is a small handheld device. The results can be used to establish probable cause to arrest for DWI or DWAI but the results are not admissible at trial. Breath Screening Tests will be discussed in subsequent Blogs.)

Where a motorist, after being properly warned of the consequences, refuses to take a lawfully requested chemical test, his or her license is immediately suspended (at arraignment) and, if the defendant subsequently loses his or her Refusal Hearing, revoked for refusal to submit to the chemical test (most likely a Breathalyzer or similar machine). NY VTL 1194(2)(b)(1). Please view the diagram at tilemandcampbell.com to see specific revocation periods. Where a defendant refuses, the officer must prepare a “Report of Refusal” which is given to the judge at arraignment.

The arraignment court is then required to temporarily suspend the defendant’s license pending the outcome of a DMV Refusal Hearing. VTL 1194(2)(b)(3). (Note: in New York City arraignment usually occurs within about 24 hours, the accused is held in jail for that period pending the arraignment but in most courts in Westchester County a summons is issued and the arraignment can take place weeks later.) The arraignment court must then notify the defendant of his or her “Refusal Hearing” date. In that regard, VTL 1194(2)(b)(4) requires that the arraignment court provide the defendant with a scheduled Refusal Hearing date.

The Refusal Hearing is an excellent opportunity for your attorney to cross-examine the officer without the prosecutor present. Because the officer need not appear but instead, may simply provide his report, it is sometimes wise to subpoena the officer to the hearing. The Refusal Hearing itself will be addressed in subsequent Blogs.

22 responses to “NEW YORK DWI – What Happens if You Refuse to Take a Properly Requested Breathalyzer Test?”

If a breathalyzer test is refused by a person who is a passenger in a vehicle driven by another person or is a person who is not driving a motor vehicle (e.g., lawfully walking on a public walkway), does the action of refusal automatically invoke suspension of that person’s driver license?

You cannot be lawfully requested to take a Breathalyzer unless you have been arrested for DWI. You cannot be arrested for DWI unless you OPERATED a motor vehicle on a public rd (1192(7)) while intoxicated.

The police can charge you with DWI under New York VTL 1192(3) based upon their observations of you (eg. Smelled alcohol on your breath or were swaying when you walked), however if you blew below .08 blood alcohol content there is a presumption that you are not intoxicated. Below .05 there is a presumption that you are not impaired. These presumptions can be found in the New York Vehicle & Traffic Law 1195. You should consult with an attorney to go over the specific facts of your case.

Can a person be deemed as having refused the breathalyzer if they are unconscious or drifting in and out of consciousness? I was in a accident after having consumed 2 glasses of wine, which I think reacted with my anti-depressant medication, causing me to either black out or fall asleep while driving. I have very little memory of the evening beyond the accident as I may have had a mild concussion. Supposedly I was asked 3 times to submit to the breathalyzer but I have no memory of being asked even once. Also it was noted in the police report that I was unconscious/sleeping at the police station.

I was pulled over for “no headlights”. My car has automatic headlights and had them checked the following day. They are in working order.
I was arrested after field sobriety test. Roadside BAC test indicated .08…Prior to official test I had requested to call my lawyer and was ignored. I was not informed of a “right of refusal” and I blew .14, do I have a case or grounds for dismissal?

My son was pulled over for a DWI. We went to Court. We never received a BAC. The officer wrote that he refused and he didn’t. My son stopped the Officer on our way out the courthouse and asked him about the comment refused . The office stated that he didn’t blow had enough. That is not a fefusal in my book.They tested him on the road and in the station. If they don’t have any paper work that tells you what BAC how cab they get you for a DWI?

This is not an uncommon situation. The police officer in many cases needs to determine whether the failure to blow hard enough is an attempt to avoid taking the breath test or as a result of some medical condition. If the police officer believes that it is intentional, he will mark it as refusal. The Judge and the Administrative Law Judge from DMV will make the ultimate determination of whether your son’s conduct constituted a refusal. For more information, contact me at 877-377-8666.

my son recieved a DWI (.10) on the chemical test at 1:04 am. My question is. The purpose for traffic stop was (officer knew him to be drinking earlier). At about 9p he and a group of friends were in an altercation and the police responded (no mention of alcohol use but no denials either)small town.Can they legally stop you if they knew you may have been drinking 3-4 hours earlier..no other reason

Your son should be entitled to a pre-trial hearing called a Johnson hearing. This would allow a Judge to suppress the breath sample that they took from him. Also please see our blog March 5, 2008 entitled DWI _ Suppression is often the best defense.

I was pulled over on the NYS Thruway for not wearing a seat belt while driving with my girlfriend. The statey was very hyper acting towards me “almost like he was on some type of speed”, asking me where I’m coming from, where I’m going, where do I live, how long have I lived with my girlfriend, what was the name of the restaurant we had just left, what did we eat, did I drink, how many drinks, what kind of cigar was I smoking, did I hollow out my cigar and fill it with marijuana and another dozen ridiculous questions. I told him I’m 56 yo and do not do any of those things. He had me recite the alphabet from D to X while still sitting in the driver’s seat, which I did successfully. Then he made me get out of the car and touch my index finger to my nose, which I did easliy. Then follow his pen with only my eyes, all over the place, for at least a minute, which I also did successfully. After that, he told me to wait by the car and returned with the portable breathilizer kit, which he “told” me to blow into.
He did not ask me. He “told” me to. He looked at the result and then told me to go sit in my car. After about 10 minutes, he returned and gave me a ticket for not wearing my seat belt.
All that humilation in front of my girlfriend and passerby drivers on the Thruway and stress inflicted on me and I was not impaired. Don’t I have any constitutional rights anymore? Do I not have any recourse against the NYS police for this obscenitiy of justice? They techinically have the ability to pull anybody over with the excuse that they did not see them wearing a seat belt, to be able test that person at will.
Should I just accept the fact that NYS is a facist state, where the police can routinely lie and use illegal methods to violate individuals rights? That the reason that NYS is in such a financially bad state is because they have spent way too much money in law enforcement electronic gadgets, motor vehicles and police on the payroll… and are now frantically trying to recoup that money in fines “w/surcharges”? That these inane NYS laws are good for lawyers, as yourself, to keep business increasing for you also? And should I just move back to my home state of “Live Free or Die” NH, where people’s rights are still protected against criminal justice corruption?

I was pulled over on the NYS Thruway for not wearing a seat belt while driving with my girlfriend. The statey was very hyper acting towards me “almost like he was on some type of speed”, asking me where I’m coming from, where I’m going, where do I live, how long have I lived with my girlfriend, what was the name of the restaurant we had just left, what did we eat, did I drink, how many drinks, what kind of cigar was I smoking, did I hollow out my cigar and fill it with marijuana and another dozen ridiculous questions. I told him I’m 56 yo and do not do any of those things. He had me recite the alphabet from D to X while still sitting in the driver’s seat, which I did successfully. Then he made me get out of the car and touch my index finger to my nose, which I did easliy. Then follow his pen with only my eyes, all over the place, for at least a minute, which I also did successfully. After that, he told me to wait by the car and returned with the portable breathilizer kit, which he “told” me to blow into.
He did not ask me. He “told” me to. He looked at the result and then told me to go sit in my car. After about 10 minutes, he returned and gave me a ticket for not wearing my seat belt.
All that humilation in front of my girlfriend and passerby drivers on the Thruway and stress inflicted on me and I was not impaired. Don’t I have any constitutional 5th ammendment rights anymore? Do I not have any recourse against the NYS police for this obscenitiy of justice? They techinically have the ability to pull anybody over with the excuse that they did not see them wearing a seat belt, just to be able test that person for DUI.
Should I just accept the fact that NYS is a facist state, where the police can routinely lie and use illegal methods to violate individuals rights? That the reason that NYS is in such a financially bad state is because they have spent way too much money on law enforcement electronic gadgets, motor vehicles and police on the payroll… and are now frantically trying to recoup that money in fines “w/surcharges”? That these inane NYS laws that are being added constantly, are good for business… for attorneys as yourself?
And lastly, should I just move back to my home state of “Live Free or Die” NH, where people’s rights are still protected against the criminal “injustice” system… unlike here in NY?

Can you refuse a breathalyzer by your “actions”? If you agree to take one. You take 2 in the field. But by the time you get to the jail, you are acting combative, and asking them to losen your handcuffs.And instead of giving you another test, they take you to a cell, and say that your actions refused. Also there was no paperwork or mention of the other 2 breathalyzers. But if there were, wouldn’t that be enough to say you had not refused?

I am curious – I have a friend that refused the breathalyzer in NY and he seems to be going through alot more than what they explain in anything I’ve read which makes me question his attorney. He said he won’t get his license back for 2 years (he lost it about 6 months ago) – he can’t leave the county he lives in, he has to go to AA 3 times a week and he will have paid up to 20,000 in fees/fines by the time all is said and done. Does this sound right?